6.  The applicant was born in 1980 and lives in Athens.
7.  The applicant had been working for a jewellery manufacturing company since 2001. On 4 March 2003 he resigned from his post in order to carry out his military service. Afterwards he contacted S.K., the owner of the company, who hired him again on a full-time basis from 1 July 2004 on a monthly salary of 722.92 euros (EUR).
8.  In January 2005 the applicant told three of his colleagues – I.M., S.M. and O.G. – that he feared he had contracted the human immunodeficiency virus (HIV). On 11 February 2005, while he was on annual leave, that fear was confirmed by a test establishing that he was indeed HIV-positive. On 15 February his employer, S.K., received a letter from the three above-mentioned employees in which they told her that the applicant “had Aids” and that the company should dismiss him before the end of his annual leave. All three colleagues had tested negative for Aids.
9.  In the meantime information about the applicant’s health condition had spread throughout the entire company of seventy employees. The staff started complaining to their employer about having to work with a colleague who was HIV-positive and demanded his dismissal. S.K. then invited an occupational-health doctor to come to the company premises and talk to the staff about HIV and how it could be transmitted. The doctor attempted to reassure the staff by explaining the precautions to be taken but they continued to demand the applicant’s dismissal. S.K. then considered transferring the applicant to another department at a different location, but the head of that department threatened to resign if the applicant joined his team. S.K. then offered to help the applicant set up his own business if he would tender his resignation. She also offered to pay for him to attend a training course in hairdressing. The applicant refused her offers however.
10.  On 21 February 2005 thirty-three employees of the company (approximately half the total number of staff) sent a letter to S.K. asking her to dismiss the applicant in order to “preserve their health and their right to work”, failing which the harmonious atmosphere in the company would, in their view, be liable to deteriorate. On 23 February 2005, two days before the applicant returned from leave, S.K. dismissed him and paid him the statutory compensation due under Greek law, namely, one month’s salary and EUR 843.41 in respect of holiday leave.
11.  Shortly after his dismissal the applicant found another job in a private company.
12.  On 13 May 2005 the applicant brought proceedings in the Athens Court of First Instance. He complained that “unacceptable social prejudices and outdated taboo considerations” had prevailed over recognition of his contribution to the company where he had worked. He also claimed that he had been unfairly dismissed and that his dismissal was invalid because he had not been paid sufficient compensation. He alleged that he had been dismissed on the basis of “despicable considerations” which took no account of the “human factor or his person”, that his employer “had remained manifestly indifferent to the fact that she had thus seriously harmed a hard-working and conscientious employee at the very time when basic humane considerations required that he be supported and had at the same time callously insulted him”, and that his employer had “treated him with an unjustified and inhumane aversion for his serious health problem”.
13.  The applicant added that the only reason that had led S.K. to dismiss him had been (scientifically unfounded) prejudice against HIV-positive persons and the alleged “risk” that they posed in their professional and social relations. It was therefore clear, in the applicant’s view, that S.K.’s conduct had brutally violated his personality rights, in particular the most intimate ones concerning sensitive personal details. The manner in which he had been dismissed had diminished unacceptably his value as a human being by reducing him to an “object” that could be handled according to “personal prejudices and obsessions”.
14.  The applicant asked the court to declare the termination of the contract unlawful, order the employer to continue employing him and paying him a salary, and to pay him EUR 9,397 in unpaid salaries, EUR 1,068.62 in holiday bonuses and various other amounts calculated by him and, lastly, the sum of EUR 200,000 for non-pecuniary damage.
15.  In a judgment of 13 June 2006 the court held that the dismissal was unlawful, as contrary to Article 281 of the Civil Code which prohibited the exercise of a right if it manifestly exceeded the limits imposed by good faith or morals. The court found that the sole ground for terminating the contract had been the applicant’s illness and awarded him EUR 6,339.18, which corresponded to unpaid salaries since his dismissal. The court considered that the employer’s conduct, even taking account of the pressure exerted by her employees, had constituted an abuse of rights. It found that the employer had decided to dismiss the applicant in order to ensure that her company continued operating smoothly and to avoid protests and complaints, thus currying favour with the majority of her staff.
16.  However, the court rejected the applicant’s complaint that his dismissal had violated his personality rights because it had not been established that the dismissal had been motivated by reprehensible intent or an intention to defame the applicant. The court found, however, that S.K. had dismissed the applicant in order to preserve what she had wrongly believed to be an issue of peaceful working relations within the company. Lastly, the court held that it was not necessary to order the applicant’s reinstatement because he had found a new job in the meantime.
17.  On 26 February and 15 March 2007 respectively, S.K. and the applicant lodged an appeal against that judgment with the Athens Court of Appeal.
18.  In a judgment of 29 January 2008, the Court of Appeal dismissed S.K.’s appeal and upheld the applicant’s appeal on both grounds, namely, abuse of rights and violation of personality rights. Like the Court of First Instance, the Court of Appeal acknowledged that S.K. had dismissed the applicant after giving in to pressure from staff and in order to preserve a good working environment in the company. The Court of Appeal observed that the employees’ fears were scientifically unfounded, as the occupational-health doctor had explained. Given the mode of transmission of the virus, there was no danger to their health. Accordingly, their fears were in reality based on prejudice rather than on an established risk; consequently, the applicant’s illness could not affect the future smooth operation of the company.
19.  The Court of Appeal weighed the need to maintain the smooth operation of the company, which was threatened by scientifically unfounded fears, against the applicant’s justified expectation of being protected during the difficult period he was experiencing. It noted that where an employee’s illness did not adversely affect work relations or the smooth operation of the company (through absenteeism or reduced working capacity, for example), it could not serve as an objective justification for terminating the contract. It noted that the applicant had not been absent from work and that no absence on the ground of illness was foreseeable in the immediate future. Moreover, the nature of the applicant’s job, which did not demand excessive effort, precluded the risk of a reduction in his capacity for work since, during the many years in which a person was merely HIV-positive, his or her working capacity was not substantially reduced.
20.  It observed that the applicant’s illness could not adversely affect the future smooth operation of the company, as none of the employees had left the company between the time when the applicant’s illness had been revealed and the termination of his employment contract. It concluded that the fact that S.K. “had given in to the demands of her employees, dismissed the applicant and terminated his contract could not be justified on grounds of good faith or the employer’s interests within the proper meaning of the term”.
21.  The Court of Appeal awarded the applicant the sum of EUR 6,339.18 in unpaid salaries backdated to the date of his dismissal. It also held that the applicant’s personality rights had been infringed as his unfair dismissal had affected both his professional and social status, which were the two facets of an individual’s personality. It awarded him the further sum of EUR 1,200 for non-pecuniary damage under that head.
22.  On 4 July 2008, S.K. appealed on points of law against the Court of Appeal’s judgment.
23.  On 16 October 2008 the applicant also lodged an appeal against the Court of Appeal’s judgment. He relied on Articles 180 (nullity of a legal act), 281 (abuse of rights) and 932 (compensation for non-pecuniary damage) of the Civil Code, on Article 22 (right to work) of the Constitution, and on the principle of proportionality regarding the amount of the compensation awarded. Relying on the case-law of the Court of Cassation, he also submitted that where a dismissal had been set aside by a judicial decision as unfair, the employer was under an obligation to reinstate the employee. More specifically, in his second ground of appeal, the applicant submitted that the Court of Appeal had wrongly rejected his request to be reinstated in the company, arguing that reinstatement was the rule in the event of a breach of Article 281, or in the event of an infringement of personality rights or of the right to personal development and participation in professional life.
24.  In judgment no. 676/2009 of 17 March 2009 (finalised on 4 June 2009), the Court of Cassation quashed the Court of Appeal’s judgment on the ground, inter alia, that the court had wrongly construed and applied Article 281 of the Civil Code to the facts of the case. It found that termination of an employment contract was not unfair if it was justified by the employer’s interests “in the proper sense of the term”, such as the restoration of peaceful working relations between employees and the smooth operation of the company where these were liable to be disrupted by maintaining the dismissed employee in his or her post. The Court of Cassation held as follows:
“As the dismissal ... was not motivated by ill-will, revenge or any aggressivity on the part of [the employer] towards [the employee], the dismissal was fully justified by the interests of the employer, in the proper sense of the term [interests], in that it was done in order to restore peace in the company and its smooth operation. The employees were seriously perturbed by the extremely serious and contagious illness of the [applicant], which aroused feelings of insecurity among them and fears for their health, prompting them to request – collectively and in writing – his dismissal and stress that if he were not dismissed the smooth operation of the company would be severely affected ...”
25.  Lastly, the Court of Cassation dismissed the applicant’s appeal as devoid of purpose and remitted the case to the Court of Appeal.
26.  Neither the applicant nor his former employer took the initiative reserved to them by statute of applying to the Court of Appeal for a ruling on the case remitted to it.